an analysis of section 24g of the national environmental

An Analysis of Section 24G of the National

Environmental Management Act

Gideon J Erasmus

8/31/2011

1

Contents Page:

1 Introduction 2

2 NEMA’s Two Regimes 3

2 1 Section 24 of NEMA: Listed Activities 3

2 2 Section 28 of NEMA: Duty of Care 3

3 Filling of a Lacunae 4

3 1 The Absence of Provisions Controlling Unlawful Activities 4

3 2 Conflicting Case Law: A Brief Summary 5

4 Retrospective Authorisation: Section 24G of NEMA 8

4 1 Section 24G(1) 9

4 2 Section 24G(2) 10

4 2 1 Section 24G(2A): The Administrative Fine 10

4 2 2 Interpreting the Administrative Fine by Interpreting Other Legislation

11

4 3 Section 24G(3) 16

5 Lawfulness, Reasonableness and Procedural Fairness 16

5 1 Section 24G and the Constitution 17

5 2 An analysis of Possible Attacks in terms of PAJA 18

6 Conclusion 22

Bibliography 24

Appendix I: Mentorskraal S24G Fine Letter

Appendix II: Pienaar Letter

2

1 Introduction:

Section 24 of the Constitution of South Africa1 (Constitution) entrenches the right

to an environment which is not harmful to health or wellbeing, as well as, the right to

have that environment protected by reasonable legislative measures. In the

Supreme Court of Appeal case of Director: Mineral Development (Gauteng region) v

Save the Vaal Environment2 it was held that the Constitutionally entrenched

environmental rights are equal to any other rights entrenched in the Bill of Rights:

By including environmental rights as fundamental justiciable human rights, the Constitution,

by necessary implication, requires that environmental considerations be accorded appropriate

recognition and respect in the administrative processes in South Africa. Together with the

change in the ideological climate brought about by the adoption of the Constitution must also

come a change in the legal and administrative approach to environmental concerns.3

Section 24 of the Constitution is enabled by the National Environmental

Management Act,4 specific Environmental Management Acts, and related legislation

that affect the environment. This paper is limited to considering how section 24G of

NEMA functions to enable the objectives of section 24 of the Constitution by

addressing the previously intractable problem of how to deal with prohibited activities

that have been commenced with unlawfully.

2 NEMA’s Two Regimes:

A key element in the South African Framework for Environmental Governance is

the management of activities which either have had, are having, or may have a

significant negative impact on the environment.

Two regimes are established by NEMA for dealing with such activities namely; the

prohibition without prior authorisation of activities listed in terms of Sections 24(2)(a)

and (d) of NEMA, and the imposition of a general environmental duty of care by

Section 28(1) of NEMA.

2 1 Section 24 of NEMA: Listed Activities:

1 The Constitution of the Republic of South Africa, 1996.

2 1999 (2) SA 709 (SCA).

3 Para 107.

4 National Environmental Management Act 107 of 1998. Hereafter NEMA.

3

Section 24(2)(a) of NEMA provides for the identification of activities that may not

commence without prior authorisation. The list of such activities is contained in the

“Listing Notices” which are included in the Regulations that are published in terms of

Sections 24(5), 24M and 44 of NEMA.5 Section 24(2)(b) of NEMA provides for the

listing of activities contemplated in NEMA, while Sections 24(2)(a) and 24(2)(b) allow

that certain activities may commence without an environmental authorisation, but

these activities must still comply with the prescribed norms or standards. No such

norms or standards have yet been published with the result that no activities have

yet been identified in terms of Section 24(2)(b) of NEMA..

The 2010 NEMA EIA Regulations prescribe specific mandatory assessment

processes that must be undertaken when applying for authorisation to undertake any

listed activity. These environmental impact assessment (EIA) processes prescribed

by Regulation GN R543 of 18 June 2010 apply only to the applications in respect of

activities listed in the listing notices contained in GN R544, GN R545 and GN R546

of 18 June 2010.

2 2 Section 28 of NEMA: Duty of Care:

Section 28(1) of NEMA establishes a general environmental duty of care in the

following terms:

Every person who causes, has caused or may cause significant pollution or degradation of

the environment must take reasonable measures to prevent such pollution or degradation

from occurring, continuing or recurring, or, in so far as such harm to the environment is

authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such

pollution or degradation of the environment.

The environmental duty of care imposed by Section 28(1) is not limited to any

particular set of activities and includes anything that; has, does or may cause

significant pollution or degradation of the environment. The requirements for

discharging an environmental duty of care in terms of Section 28(1) of NEMA are set

out in Section 28(3) of NEMA while Section 28(4) confers the powers necessary to

ensure that the Section 28(1) duty of care is discharged on the competent authority.

3 Filling of a Lacunae:

5 NEMA 2010 EIA Regulations GN R543 of 18 June 2010, Listing Notice 1: GN R544, 2: GN R545, 3:

GN R546 of same date.

4

The Environment Conservation Act6 which preceded and was repealed by NEMA

contained no provisions on how to deal with listed activities that had been

commenced with unlawfully. The relevant provisions of the ECA were limited to

ordering the cessation of such activities, the prosecution of offending parties and the

restoration of the environment. When NEMA was initially promulgated, it also

contained no provision for managing the unlawfully commenced listed activities. To

make matters worse, it also did not provide for environmental offences or penalties.

These shortcomings were, however addressed in subsequent amendments to NEMA

and particularly Section 24 thereof.

3 1 The Absence of Provisions Controlling Unlawful Activities:

The problems that arose around dealing with listed activities that had commenced

unlawfully were essentially practical. While there was no uncertainty about the

wrongfulness of the unlawful commencement of a listed activity without prior

authorisation, it was rarely clear what the most environmentally accountable

response to such unlawful activities should be.

In some instances where an activity would have been denied authorisation even if

application for such authorisation had been made, the impacts of the already

undertaken actions may be such as to render rehabilitation either non-viable or

potentially more harmful to the environment than the status quo.

In other instances, however, where it was likely that had application properly been

made, the unlawfully commenced activity would have been authorised it is

counterproductive and potentially more harmful to the environment to require that an

activity already commenced with albeit unlawfully, must be “undone” only to be

redone after a new application for authorisation had been approved.

The absence of any provision in NEMA for managing or rectifying the

consequences of listed activities that had been unlawfully commenced left a lacunae

in our legal system which, apart from anything else, resulted in contradictory

decisions being made by the courts. Section 24G was inserted by Section 3 of Act 8

of 2004 to fill the lacunae.7

6 Environment Conservation Act 73 of 1989.

7 Section 3 of the National Environmental Management Amendment Act 8 of2004 and substituted by

Section 6 of the National Environmental Management Amendment Act 62 of 2008.

5

3 2 Conflicting Case Law: A Brief Summary:

Up until the introduction of Section 24G by the Amendment Act,8 ex post facto

authorisation of an unlawful activity was not provided for in our legislation concerning

environmental law. The general view was as Van der Linde said that if you read

Section 21 of the ECA with Section 24(1) of NEMA an Environmental Impact

Assessment is required before the listed activity is started.9

However, the interpretation of the requirements in the ECA and NEMA resulted in

two different views regarding ex post facto EIA authorisation for listed activities. In

the case of Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and

Others10 and Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts

Products, and Others11 the view of the courts were that ex post facto authorisation

was not allowed. In contrast in the case of Eagles Landing Body Corporate v Molewa

NO and Others12 the Court “permitted retrospective authorisation”.13

The case of Silvermine involved using land to plant vineyards and to construct

dams on the designated property. The applicant approached the court seeking an

order to enforce the EIA requirements in terms of the ECA or the provisions as

envisaged in NEMA for the planting of vineyards.14 The applicants were a group of

non-governmental organisations who were opposed to the respondents, the lessor

and lessee of the property’s, decision to plant the vineyards on land that was

previously used for mining.

The applicant had requested the respondents to commence with an EIA prior to

the commencement of the planned planting of the vineyards, with failure to do so

resulting in legal action.15 The respondents reacted by informing the applicant firstly,

that they were entitled to carry out the planned planting of the vineyards and

8 Section 24G inserted by Section 3 of Act 8 of 2004.

9 M van der Linde “National Environmental Management Act 107 of 1998 (NEMA)” in H A Strydom

and N D King (eds) Environmental Management in South Africa (2009) 205 193-221. 10

2002 (1) SA 478 (C). (Hereafter: Silvermine). 11

2004 (2) SA 393 (E). (Hereafter: Hichange). 12

2003 (1) SA 412 (T). (Hereafter: Eagles Landing). 13

M van der Linde “National Environmental Management Act 107 of 1998 (NEMA)” in H A Strydom and N D King (eds) Environmental Management in South Africa (2009) 207 193-221. 14

The order sought at p480 of Silvermine: that first respondent be ordered to commission a full and independent environmental impact assessment (EIA) process in terms of the regulations issued under s 21 of the Environmental Conservation Act 73 of 1989 (ECA); alternatively in terms of the general environmental policy determined pursuant to s 2 of the said Act; alternatively in terms of the provisions of s 24 of the National Environmental Management Act 107 of 1998, in respect of the planting of a vineyard and construction of dams on Farm 1000 and Farm 1404, Simons town. 15

Silvermine page 481.

6

secondly, that they had already commenced. The applicant then applied to the court

“to compel [the] developer to conduct an EIA in respect of the activities which had

been commenced”.16

The Court upon looking at the application was of the meaning that Section 24(1)

only applies to EIA authorisation before the commencement of an activity and does

not envisage the commissioning of an EIA once the activity for which authorisation is

required has already taken place as it would serve no legal purpose.17

The Court at this point looked what Section 24 of NEMA was intended for, holding

that it was intended to aid an authorising official to reach a decision on whether to

grant an authorisation or not. However, if no authorisation had been acquired prior to

the commencement of the activity, the person who undertook the activity acts

unlawfully.18 To this Davis J stated:

For such conduct there may be civil remedies and criminal prosecution might well be

initiated, but an EIA would only be required for the process of authorisation. The investigation

cannot be wrenched from the rest of the legislative process. If a person elects to ignore the

process, the remedy to curb the unlawful conduct lies in a battery of other remedies, but not in

the relief as set out in applicant's notice of motion.19

Kidd is of the opinion that the Silvermine case is significant for two reasons.

Firstly, Firstly, by pointing out the difficulties that arise when activities are not

identified with sufficient clarity for it to be clear whether authorisation is required or

not.20 Secondly, in holding that a statutory EIA is intended for and can only be used

to assess the potential impacts of an activity before it is commenced with and not

thereafter.21

In Hichange the Court had to decide an application concerning the on-going

pollution caused by a tannery which was having detrimental effects on the

surrounding community and environment. The applicant wanted to compel the

relevant authorities to force the respondent to investigate, evaluate and assess the

impact of specific activities and report thereon.22 This report called for by the

applicant was, however, not the same as that in Silvermine, as the Court held that

16

R Paschke and J Glazewski “Ex Post Facto Authorisation in South African Environmental Assessment Legislation: A Critical Review” (2006) 9 PELJ 145 120-150. 17

Silvermine page 479 . 18

Page 479. 19

Page 490. 20

M Kidd Environmental Law (2008) 197. 21

Kidd Environmental Law 197. 22

Hichange para 2.

7

Section 22 of the ECA and Section 24 of NEMA “specifically state that activities

which may have an effect upon the environment can only be authorised once an

environmental impact report has been considered”.23 This application was in terms of

Section 28(12) of NEMA calling for a directive in terms of Section 28(4) which

applies when there is failure to comply with Section 28(1). The Court held:

An environmental impact assessment under s 28 may therefore be required to prevent

pollution continuing or recurring, and is not designed solely to enable prior assessment for

authorisation to be granted.24

The effect of the High Court judgement was to confirm that environmental impact

assessment in terms of Section 28 is different from the statutory environmental

impact assessment process prescribed for listed activities in that it is intended not

only to enable prior assessment for authorisation but also assessment after an

activity has commenced or has even been completed.

The case of Eagles Landing involved an application which opposed the

construction of a peninsula that formed part of a golf estate. The applicant

approached the High Court for a review of a decision in which authorisation was

granted to an unlawful activity after it had begun. The respondent had begun

construction of the peninsula prior to having authorisation to do so and was ordered

to cease the activity and furnish an EIA. In turn the respondent compiled and

delivered an EIA to the North West Provincial Department of Environmental Affairs,

who then granted authorisation. The applicant appealed unsuccessfully against the

decision and thereafter approached the High Court seeking to have the refusal of the

appeal set aside on review.

It was argued in the case by the respondents that if the order that the applicants

wanted had to be enforced, that the developer would first be obliged to remove what

he had constructed and only thereafter apply for authorisation before commencing

de novo with the construction.25 Further it was argued not to have been the intention

of the legislature when contemplating the provision to allow for a situation that would

oblige a person to remove to remove a structure and then to apply for authorisation.

Counsel for the respondent said:

23

para 1. 24

para 414. 25

Eagles Landing para 101.

8

The proper approach in such circumstances would be to regard the completion of the

construction as the 'proposed' activity and, provided that the authorisation thereof was

otherwise valid, that would comply with the spirit and objectives of the legislation.26

Kroon J agreed with the argument of the respondent on this point stating that:

Provided that the authorisation for the completion of the partially undertaken activity is the

result of a proper compliance with the provisions, and the environment protection and

preservation objectives, of the environmental legislation, it will, in my judgment, constitute a

valid authorisation. The circumstance that an unauthorised partially undertaken activity would

thereby in effect be legitimated would be no more than an incidental result of the authorisation

granted.27

This judge found that retrospective authorisation of unlawful activities was

possible, as long as the objectives of the environmental legislation was upheld and

implemented. As an aside, the Court did not deal with the absence of an

empowering provision which appears to render the decision of the competent

authority to grant an ex post facto authorisation ultra vires the competent authority’s

powers.

The Silvermine and Eagles Landing cases are in direct contradiction of one

another. In Silvermine it was held that a statutory environmental impact assessment

can never be used in respect of an activity that is not specifically listed or one that

has already commenced. In Eagles Landing it was held that a statutory

environmental impact assessment and authorisation can follow the under taking of a

listed activity.

The Hichange judgement is the only one of these judgements that acknowledges

that an environmental impact assessment in terms of Section 28 of NEMA is similar

in nature but different in purpose from an environmental impact assessment

undertaken in terms of Section 24. The purpose of a Section 28 environmental

impact assessment is to determine how best to deal with the discharge or failure to

discharge the environmental duty of care in posed by Section 28(1) while a Section

24 environmental impact assessment is meant to determine whether a proposed

listed activity should be authorised or not.

4 Retrospective Authorisation: Section 24G of NEMA

Due to these contrasting viewpoints in our Courts, the Legislature introduced

Section 24G into NEMA through the Amendment Act, to regulate the rectification of

26

para 101. 27

para 102.

9

unlawful commencement or continuation of listed activities. Section 24G provides as

follows:

Rectification of unlawful commencement or continuation of listed activity:

(1) On application by a person who has committed an offence in terms of

section 24F (2) (a) the Minister, Minister of Minerals and Energy or MEC concerned,

as the case may be, may direct the applicant to-

(a) compile a report containing-

(i) an assessment of the nature, extent, duration and significance of

the consequences for or impacts on the environment of the activity,

including the cumulative effects;

(ii) a description of mitigation measures undertaken or to be

undertaken in respect of the consequences for or impacts on the

environment of the activity;

(iii) a description of the public participation process followed during the

course of compiling the report, including all comments received from

interested and affected parties and an indication of how issues raised

have been addressed;

(iv) an environmental management programme; and

(b) provide such other information or undertake such further studies as the

Minister or MEC, as the case may be, may deem necessary.

(2) The Minister or MEC concerned must consider any reports or information

submitted in terms of subsection (1) and thereafter may-

(a) direct the person to cease the activity, either wholly or in part, and to

rehabilitate the environment within such time and subject to such conditions

as the Minister or MEC may deem necessary;

or

(b) issue an environmental authorisation to such person subject to such

conditions as the Minister or MEC may deem necessary.

(2A) A person contemplated in subsection (1) must pay an administrative fine, which

may not exceed R1 million and which must be determined by the competent

authority, before the Minister or MEC concerned may act in terms of subsection (2)

(a) or (b) .

(3) A person who fails to comply with a directive contemplated in subsection (2)

(a) or who contravenes or fails to comply with a condition contemplated in

subsection (2) (b) is guilty of an offence and liable on conviction to a penalty

contemplated in section 24F (4).

10

4 1 Section 24G(1):

Section 24G(1) sets out the procedure to be followed by anyone seeking

authorisation for the rectification of unlawful commencement or continuation of a

listed activity.

Crucial to understanding Section 24G is the requirement that authorisation in

terms of Section 24G may only be sought by a person who has committed an

offence in terms of Section 24F(2). Authorisation in terms of Section 24G is obtained

on application to the Minister or MEC as the case may be.

If an Applicant has not explicitly done so previously, in making application for

rectification in terms of Section 24G, the Applicant admits, by necessary implication,

to having committed an offence in terms of Section 24F(2).

On receipt of an application in terms of Section 24G(1) the Minister or MEC may

require the Applicant to compile an EIA Report or undertake such studies and

provide such information as is deemed necessary.

4 2 Section 24G(2):

Section 24G(2) provides for the consideration of an application in terms of

Section 24G. The Minister or MEC may direct the Applicant to cease the activity and

rehabilitate the environment or issue an environmental authorisation to the Applicant

on such conditions as the Minister or MEC deems appropriate. Section 24G(2) must

be read with Section 24G(2A) in order to consider the application as the decision that

has to be taken is dependent on the payment of an administrative fine. Section

24G(2A) allows for the payment of an administrative fine that does not exceed R 1

million. The administrative fine is to be determined by a competent authority.

4 2 1 Section 24G(2A): The Administrative Fine:

To understand how Section 24G works a proper understanding of what is meant

by the administrative fine prescribed in Section 24G(2A) is necessary and a

distinction needs to be drawn between the administrative fine and the penal

sanctions as provided for in Section 24F(4) of NEMA.

11

No definition for an administrative fine is provided in either NEMA or the NEMA

EIA Regulations, but there are several interpretations that can have an effect on how

one is to deal with the question of an administrative fine.

When one interprets legislation, a fundamental requirement is to give effect to the

intention of the legislature.28 Where that intention is not immediately evident from the

legislation in question there are specific rules that govern how that intention is to be

established. Through a purposive interpretation one can determine the meaning of a

section based on the purpose of its enactment.29

Section 24G(2A) states that an administrative fine is required to be paid before the

Minister or the MEC can consider an application in terms of Section 24G. The

maximum fine that may be imposed is R 1 million by the competent authority. M van

der Linde states that this fine is intended as a criminal sanction.30

That is so because administrators by interpreting the administrative fine as an

administrative fee would lead to situations that are contradictory and that are

unlawful. In essence being similar to autrefois convict “the criminal law principle that

a party cannot be convicted for the same offence twice”.31 Van der Linde is clearly

wrong as will be explained more fully below.

4 2 2 Interpreting the Administrative Fine by Interpreting Other Legislation:

The intention of the Legislature with the administrative fine provided for in Section

24G(2A) of NEMA was not to impose a penalty as such, but rather to give effect to

the principle that “the polluter pays” also in respect of the additional work occasioned

by an offending party’s unlawful commencement of a prohibited listed activity.32 The

interpretation that best suits Section 24G(2A) is that the administrative fine is a

mechanism to cover the administration costs to the competent authority, Minister

and/or the MEC of the application in terms of Section 24G. This application stands to

be distinguished from an application for authorisation properly made in terms of

NEMA and the Regulations because an application in terms of Section 24G would

not only have to deal with the potential impacts of a proposed activity that has not yet

28

Section 1(3) of NEMA. 29

I Currie and J De Waal The Bill of Rights Handbook 5ed (2005) 148-150. 30



Section 2(4)(viii) of NEMA.

12

commenced but also with inter alia the actual impacts that have become manifest,

the rehabilitation of the site and how to achieve a balance between the unlawfulness

of the commencement and the public interest.

There are other instances in South African law where administrative fines are

provided for, but those stand to be clearly distinguished from the administrative fine

provided for in NEMA primarily because they are clearly penal in nature or imposed

in lieu of other penalties.

Firstly, as an extreme example, the Companies Act33 in Section 175 provides for

administrative fines. Section 175 provides as follows:

(1) A court, on application by the Commission or Panel, may impose an administrative fine-

(a) only for failure to comply with a compliance notice, as contemplated in section

171 (7); and

(b) not exceeding the greater of-

(i) 10% of the respondent’s turnover for the period during which the

company failed to comply with in the compliance notice; and

(ii) the maximum prescribed by subsection (5).

(2) When determining an appropriate fine, the Competition Tribunal must consider the

following factors:

(a) the nature, duration, gravity and extent of the contravention;

(b) any loss or damage suffered as a result of the contravention;

(c) the behaviour of the respondent;

(d) the market circumstances in which the contravention took place;

(e) the market circumstances in which the contravention took place;

(f) the level of profit derived from the contravention;

(g) the degree to which the respondent has co-operated with the Commission or the

Panel; and

(3) For the purpose of this section, the annual turnover of any person, is the amount

determined in the prescribed manner.

(4) A fine payable in terms of this section must be paid into the National Revenue Fund

referred to in section 213 of the Constitution.

(5) The Minister may make a regulation prescribing the maximum amount of an

administrative fine, which amount must be not less than R1 000 000.

This Section allows a Court on application to impose a fine. The legislature also

sets out how the fine is to be determined and when the fine is paid, that it is to be

paid to the National Revenue Fund.

33

Companies Act 71 of 2008.

13

Secondly, the Competition Act34 also provides for administrative fine in Section 61

which is similar to that of the Companies Act Section 175:

(1) The Competition Tribunal may impose an administrative penalty only—

(a) for a prohibited practice in terms of sections 4( l)(b), 5(2) or 8(a), (b) and (d);

(b) for a prohibited practice in terms of sections 4(1 )(a), 5( 1 ), 8(c) or 9( 1 ), if the 35

conduct is substantially a repeat by the same frim of conduct previously found by the

Tribunal to be a prohibited practice; or

(c) if the parties to a merger have—

(i) failed to give notice of the merger as required by section 13;

(ii) proceeded to implement the merger in contravention of a decision by the

40 Competition Commission or the Competition Tribunal to prohibit that

merger;

(iii) proceeded to implement the merger in a manner contrary to a condition

for the approval of that merger imposed by the Commission in terms of

section 14, or the Tribunal in terms of section 15; or 45

(iv) proceeded to implement the merger without the approval of the

Commission or the Tribunal.

(2) An administrative fine imposed in terms of subsection (1) may not exceed 10% of the

firm’s annual turnover in the Republic and its exports from the Republic during the firm’s

preceding financial year.

(3) When determining an appropriate fine, the Competition Tribunal must consider the

following factors:

(a) the nature, duration, gravity and extent of the contravention:

(b) any loss or damage suffered as a result of the contravention;

(c) the behaviour of the respondent:

(d) the market circumstances in which the contravention took place;

(e) the level of profit derived from the contravention:

(f) the degree to which the respondent has co-operated with the Competition

Commission and the Tribunal; and

(g) whether the respondent has previously been found in contravention of this

Act.

(4) A fine payable in terms of this section must be paid into the National Revenue

Fund referred to in section 213 of the Constitution.

Finally the Financial Institutions (Protection of Funds) Act35 in Section 10 provides

as follows:

(1) A person who contravenes or fails to comply with any provision of this Act is guilty of an

offence and on conviction liable to a fine or imprisonment for a period not exceeding 15 years.

34

Competition Act 89 of 1998. 35

Financial Institutions (Protection of Funds) Act 28 of 2001.

14

(2) A court may, in addition to any penalty it may impose in terms of subsection (l), order that

such person-

(a) pay the institution or principal concerned any profit he or she made; and

(b) compensate the institution or principal concerned for any damage suffered, as a

result of the contravention or failure.

(3) A court may, in addition to any penalty imposed in terms of subsection (1) and an order

made in terms of subsection (2), order that such person may not serve as a director, member,

partner or manager of any financial institution for such period as the court may deem fit.

In all three of the above instances the administrative fine is intended to be used in

situations where there has been contravention of a provision in the Act being

considered or where there has been failure to comply with a requirement in the

relevant Act. What is also notable from these three provisions is the fact that a Court

or a Tribunal or an Institution created by the Act imposes the fine, and not an

administrator.

The difference in Section 24G(2A) an official imposes a fine and Section 24F

imposes it through a court. The imposition of a fine in terms of Section 24G is

mandatory. Section 1 of NEMA gives a definition of what a competent authority is36

and it is clear from the definition that it is not a Court or a Commission. The Head of

Department is deemed to be the competent authority. Section 24F of NEMA is a

conventional offences and penalties provision in that it sets out what offences may

be committed in terms of NEMA and what penalties may be imposed on offending

parties. Determining guilt and imposing penalties in respect of offences committed in

terms of Section 24F is ultra vires the statutory powers of the competent

environmental authorities established by NEMA and falls to the criminal justice

system.

The administrative fine provided for in Section 24G(2A), on the other hand, is an

entirely different type of provision in that it seeks to hold the offending party liable for

the administration costs that flow from an application in terms of Section 24G which

would have been completely unnecessary had no offence been committed in the first

place.

36

Section 1: competent authority, in respect of a listed activity or specified activity, means the organ of state charged by this Act with evaluating the environmental impact of that activity and, where appropriate, with granting or refusing an environmental authorisation in respect of that activity.

15

The principles set out in Section 2 of NEMA are important for the sustainability of

the environment as they apply throughout South Africa37 and serves as guidelines

and frameworks with which any decision or implementation of plans regarding the

environment must be applied.38 Kotze describes achieving sustainable results

through the use of sustainable principles39 such as those found in Section 2(4) of

NEMA.40

In practice the environmental authorities have developed a formula for

determining the actual amount of the administration fine to be imposed in each

instance. The Mentorskraal Familie Trust, by way of example, was required to pay

an administration fine of R78 500,00 for unlawfully commencing with the construction

of a filling station near Jeffreys Bay in the Eastern Cape. Attached in the Appendix is

the example of Mentorskraal Familie Trust.

Some authors have suggested that the administration fine imposed in terms of

Section 24G(2A) is in lieu of the criminal sanction provided for in Section 24F of

NEMA.41 This is incorrect as the position has been made clear by the publication of

General Guidelines by the Minister or the MEC; read together with Section 24J of

37

LA Feris “The Role of Good Environmental Governance in the Sustainable Development of South Africa” (2010) 13 PELJ 80 73-99. 38

CC de Villiers “Threatened Biodiversity, The NEMA EIA regulations and Cultivation of Virgin land: More of The Sorry Same?” (2007) 10 PELJ 47 28-68. 39

LJ Kotzé “Improving Unsustainable Environmental Governance in South Africa: The Case for Holistic Governance” (2006) 9 PEJL 99 75-118. 40

Section 2(4): Sustainable development requires the consideration of all relevant factors including the following: (i) That the disturbance of ecosystems and loss of biological diversity are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (ii) that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; (iii) that the disturbance of landscapes and sites that constitute the nation's cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; (iv) that waste is avoided, or where it cannot be altogether avoided, minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner; (v) that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; (vi) that the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised; (vii) that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and (viii) that negative impacts on the environment and on people's environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied. 41

(4) A person convicted of an offence in terms of subsection (2) is liable to a fine not exceeding R5 million or to imprisonment for a period not exceeding ten years, or to both such fine and such imprisonment.

16

NEMA42 regulates this position after it was inserted by the 2008 Amendment Act.

This section is to be read together with Section 5.15 of the Department of

Environmental Affairs and Tourism Guideline 3.43 Section 5.1544 states that

applications will only be considered upon the payment of the administrative fine and

that it is separate from any criminal penalty that may be impose. It can for this

reason be accepted that the intention of the administrative fine is to cover the costs

of the application.

As is shown above, the fines provided for by Sections 24F(4) and 24G(2A) are

also different in nature with the former being imposed by the judiciary in respect of

an offense and the latter being determined by the competent environmental authority

in response to an application for rectification. The use of the term “administrative

fine” also distinguishes the fine to be imposed in terms of Section 24G from an

“ordinary” fine in terms of Section 24F.

Section 24F(4) provides for extremely onerous penalties (fines not exceeding R5

million and/or imprisonment for no more than 10 years per offense) while Section

24G(2A) provides for an administrative fine of no more than R 1 million. This is

further confirmation that the fine imposed in terms of Section 24G(2A) is not intended

to be in lieu of a fine in terms of Section 24F(4). It follows that having paid an

administrative fine in terms of Section 24G(2A) and having made application for

rectification is not a defence. A person who makes application for rectification in

terms of Section 24G must pay an administrative fine and, additionally, remains

liable to prosecution for having committed an offence in terms of Section 24F(1).

4 3 Section 24G(3):

If a person fails to comply with a directive contemplated in subsection 24G(2)(a) or

contravenes or fails to comply with a condition contemplated in subsection

24G(2)(b), that person is guilty of an offence in terms of Section 24G(3) and liable on

42

24J Implementation guidelines The Minister or an MEC, with the concurrence of the Minister, may publish guidelines regarding- (a) listed activities or specified activities; or (b) the implementation, administration and institutional arrangements of regulations made in terms of section 24 (5). 43

General Guide to the Environmental Impact Assessment Regulations, 2006. 44

People who have undertaken an activity without authorisation may apply for rectification in terms of section 24G of NEMA. The consideration of these applications is subject to an administrative fine of up to R1 million. This fine is separate from any criminal penalty that may be imposed.

17

conviction to a penalty contemplated in section 24F(4). In other words, a person

who has admitted to having committed an offence in terms of Section 24F(1) (for

which that person may be prosecuted and receive a penalty as provided for in terms

of Section 24F(4)) would be guilty of a further offence, this time in terms of Section

24G(3) (for which that person may also be prosecuted and receive a penalty as

provided for in terms of Section 24F(4)) if that person fails to comply with a directive

contemplated in subsection 24G(2)(a) or contravenes or fails to comply with a

condition contemplated in subsection 24G(2)(b). In addition to which that person

would have had to pay an administration fine imposed in terms of Section 24G(2) for

the Minister or MEC to decide on that person’s application for rectification in terms of

Section 24G of NEMA.

5 Lawfulness, Reasonableness and Procedural Fairness:

An important question that has to be considered is whether the procedure

provided for by Section 24G is administratively just and compliant with the

requirements of especially Section 33(1) of the Constitution which provides that:

“Everyone has the right to administrative action that is lawful, reasonable and

procedurally fair”.

5 1 Section 24G and the Constitution:

In considering whether Section 24G of NEMA is administratively just or not, no

reference can be had to the Promotion of Administrative Justice Act45 (PAJA)

because NEMA, as an Act of Parliament can only be directly tested against Section

33 of the Constitution.46 What stands to be considered is whether the procedure

followed provided for by Section 24G of NEMA is lawful, reasonable and

procedurally fair.

As a procedure properly promulgated as part of an Act of Parliament, the Section

24G rectification procedure is lawful by definition. Determining whether the

procedure is reasonable, reference needs to be had to how the Courts have dealt

with reasonableness.

45

Promotion of Administrative Justice Act 3 of 2000. 46

Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA 589 (CC) para 99.

18

It is highly unlikely that the Section 24G rectification procedure will be found to be

unreasonable. In the first place, it is not a mandatory process and a person who has

committed an offence in terms of Section 24F(1) of NEMA may elect not to apply for

rectification and face the consequences. In the second place, the procedure

introduced by Section 24G operates exclusively to the benefit of the offending party

in that it creates an opportunity for the possible lawful continuation of an activity that

would otherwise have remained unlawful. The administration fine to be paid in terms

of Section 24G(2A) is, thirdly, commensurate with the complexity of considering what

to do regarding the specific offence in question.

The Section 24G procedure is, furthermore, procedurally fair in that it properly

provides for both the applicant and those affected by or interested in the activity for

which rectification is sought to make submissions in support of or in opposition to the

application before any decision is taken.

Where a person has committed an offence in terms of section 24F section 24G

provides for ex post facto environmental impact authorisation to enable the

competent authority to decide how the offending behaviour ought to best be

managed. When a competent authority considers an application in terms of section

24G, numerous factors need to be taken into consideration of which the following

factors are unique to this type of application:

1) The extent to which the unlawful activity has, is or may have any kind of

significant impact upon the environment.

2) Whether those impacts are capable of being adequately mitigated

3) Whether denying authorisation in terms of section 24G may not exacerbate

the threats to and/or the degradation of the environment.

5 2 An analysis of Possible Attacks in terms of PAJA:

As Section 24G itself cannot be tested against PAJA, only the decision made by

the Minister or the MEC in terms of the application can be tested. As a result, if an

applicant in terms of Section 24G or a person who is opposed to the activity is

dissatisfied with the decision reached by the Minister or the MEC they may make use

of PAJA in having the High Court review the decision to determine if it was lawful,

reasonable and procedurally fair.

19

In taking a decision the Minister or the MEC performs an administrative action that

can have an effect on the environment47 and the purpose of PAJA is to govern the

actions of administrators and to ensure good administrative practice48 that the

decisions that are made are fair, lawful and reasonable. Kotze and Paterson state

that environmental issues rely on administrators making decisions which often lead

to conflict surrounding those decisions.49

The purpose of this section of the paper is not to test a decision against PAJA, but

to describe what could trigger the use of PAJA. Kidd and Burn,50 say that

administrative functions encompass both powers and duties for which PAJA provides

requirements which have to be met so as to ensure just administrative action.51 If the

requirements set out in PAJA are not complied with then the action in question is

subject to judicial review.52 If however they are complied with the requirements guide

the administrator through a just decision making process.53

In Section 1(1) of PAJA the definition of what is administrative action is given

which includes taking or failing to take a decision. The definition also includes a list

of actions that do not qualify as administrative action of which none are applicable to

a decision taken in terms of Section 24G of NEMA.

In order for there to be just administration action, the action must firstly be lawful.

Section 6(2) of PAJA, which are the review grounds in the act, sets out certain

requirements which may show if the action taken was lawful. The crux of the

requirements is that one needs to see if there is authorisation and if there is, whether

the decision taken by the Minister or MEC complies with the requirements of the

empowering provision. Section 24G(2)(a) and 24G(2)(b) allow the Minister or the

MEC to direct a person to cease the activity, in full or partially or they may authorise

the activity. For this to be lawful the procedure set out in Section 24G(1) must be

47

E Bray “Administrative Justice” in A R Paterson and L J Kotzé (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (2009) 174 152-196. 48

Y Burns and M Kidd “Administrative Law and Implementation of Environmental Law” in H A Strydom and N D King (eds) Environmental Management in South Africa (2009) 228 222-268. 49

LJ Kotzé and AR Paterson “South Africa” in LJ Kotzé and AR Paterson (eds) The Role of the Judiciary in Environmental Governance (2009) 579 577-602. 50




E Bray “Administrative Justice” in A R Paterson and L J Kotzé (eds) Environmental Compliance and Enforcement in South Africa: Legal Perspectives (2009) 174 152-196.

20

complied with or else Section 6(2)(b) of PAJA can be relied on to review the decision

as authorisation for the decision depends on the procedure. The procedure that is

contemplated in Section 24G(1) requires that the applicant must compile a report

furnishing the Minister or MEC with information upon which a decision may be

taken54 and where the Minister or the MEC requires it, the applicant must provide

any information or undertake any studies the Minister or the MEC deem necessary in

the circumstances before them.55 In order for the report to be considered the

applicant has to pay an administrative fine as contemplated in Section 24G(2A).

In Weenen Transitional Local Council v Van Dyk56 it was held that complete

compliance is not required but the administrator must have given meaning to the

intention of the legislature.57 This is connected to Section 24G as the intention of the

legislature is to protect the environment and manage the activities that people

undertake. If an applicant does not pay the administrative fine the Minister or the

MEC do not have to consider the report and cannot be compelled to do so. Where

the fine is paid the Minister or the MEC must act in terms of Section 24G(2).

In Hira and Another v Booysen and Another58 it was held that where the intention

of the legislature was required to determine whether the error in law is reviewable,

and the error materially affected the decision,59 the decision could be reviewed.

PAJA Section 6(2)(d) expresses the finding of Hira and when an action is materially

influenced by an error it can be reviewed. This is relevant to Section 24G as the

Minister or the MEC are not limited to the information before them that has been

compiled by the applicant in terms of Section 24G(1)(a) or (b). It would be expected

that in payment of the administrative fine, that the relevant Minister or MEC would

look at information beyond the report so as to enforce the duty of care of the

environment envisaged in Section 28 of NEMA. But in doing so they must still

remember not to exceed what is expected of them in reaching a decision that is best

suited to preserve the environment. By doing this, the Minister or the MEC must also

be cautious and within reason. Section 6(2)(e)(iii) of PAJA allows the review of

administrative action where the administrator has laboured under the incorrect fact

54

Section 24G(1)(a) of NEMA. 55

Section 24(1)(b) of NEMA 56

2002 (4) SA 653 (SCA). 57

para 13. 58

1992 (4) SA 69 (A). (Hereafter Hira). 59

para 93.

21

and that incorrect fact has materially affected his decision.60 If the Minister or the

MEC do require further information that is not contemplated for in Section 24G(1) of

NEMA, that information has to be necessary for the Minister or MEC to reach a

decision. Section 6(2)(d) and 6(2)(e)(iii) are both applicable on Section 24G in the

sense that there will be an error of law where the Minister or MEC do not request

further information and where there has been such a request, the decision that is

made must not have been based on irrelevant facts.

Secondly, the decision made in terms of Section 24G of NEMA has to be

reasonable. Rationality constitutes the core minimum standard61 for reasonableness

requiring only reasons to satisfy the requirement. This has been incorporated into

Section 6(2)(f)(ii) of PAJA which sets out a number of criteria to see if the action is

rational. In Carephone (Pty) Ltd v Marcus NO and Others62 Froneman DJP held that

there must be a rational objective basis justifying the connection between the

information available and the final conclusion.63

Section 6(2)(h) of PAJA places a higher degree of reasonableness on the

decision. This is so as Section 28 of NEMA places a duty of care on a person who

owns property regarding the environment. O’Regan J in Bato Star Fishing (Pty) Ltd v

Minister of Environmental Affairs and Others64 gave meaning to Section 6(2)(h). In

the case the Judge sets out a number of factors namely the nature of the decision,

the identification and expertise of the decision maker, reasons given and the nature

of the competing interests involved and the impact of the decision on the lives and

well-being of those affected.65 The decision will be reviewable if it is such that a

reasonable decision maker would not reach such a decision.66 A reasonable Minister

or MEC who has a duty to protect the environment when considering a Section 24G

application would be expected to have rationally considered all aspects and

consequences the decision they will make could have not only on the environment

but also on other interested parties and in doing so having a rational basis for their

decision.

60

Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) at para 47. 61

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) at para 108. 62

1999 (3) SA 304 (LAC). 63

37. 64

2004 (4) SA 490 (CC). Hereinafter Bato Star. 65

45. 66

Section 6(2)(h) of PAJA.

22

Where the minimum standard of Section 6(2)(f)(ii) is not enough to ensure the

reasonableness of the administrative action, Section 6(2)(h) provides guidance. The

implication of these factors of Bato Star is so that one can question why the decision

was made, by incorporating proportionality to the decision. Proportionality requires a

balance between the impact of the decision and the purpose of the decision.67 As

this is not a law of general application the limitation clause set out in Section 36 of

the Constitution is not applicable, but one could interpret Bato Star and the factors

set out in the case so as to function as a limitation clause in administrative law and in

doing so determine the reasonableness of the decision. The factors that are

considered in Section 36 of the Constitution that allows for the limitation so that there

can be proportionality include, the nature of the interest, the importance of the

purpose of the decision, the nature of the power, surrounding circumstances, the

intensity of the impact, the broader public’s interest and whether there is a less

restrictive means. In considering an application brought through Section 24G a

Minister or MEC will have to justify their decision that they make against each factor

to show that they have balanced each affected interest against each other and have

reasons for why they made the decision in such a way and is rationally justifiable.

Finally, PAJA requires that the decision must have been reached following a fair

procedure. Section 3 of PAJA in particular Section 3(5) allows for a procedure that is

different to that found in Section 3(2)(b) as long as it is fair. In Police and Prisons

Civil Rights Union and Others v Minister of Correctional Services and Others68 it was

stated that Section 3 of PAJA is the bare minimum with which must be complied and

that where an alternative procedure exists that is provided for by the empowering

provision then that procedure must be followed.69 For the alternative procedure to be

fair, it requires the procedure to be lawful. Therefore there is a possible overlapping

of the requirements for lawfulness (Section 6(2)(b)) and the requirements for

procedural fairness (Section 6(2)(c)), for compliance of the procedure not in terms of

NEMA but rather in terms of PAJA .

Section 24G(1) sets out the procedure that an applicant in terms of Section 24G

must have abided by, by compiling a report and submitting that report to the Minister

or MEC for consideration. This section requires that the compiled report be extensive

67

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another 2002 (3) SA 265 (CC) para 162. 68

(No 1) 2008 (3) SA 91 (E). 69

para 71.

23

by including the interests of all the affected parties,70 public participation71 and an

environment management programme.72 Even though NEMA allows for an

alternative procedure in Section 24G(1), the compiling of the report and 24G(2)

allowing the Minister or the MEC to make a decision, Section 3(2)(b) of PAJA is the

bare minimum that must still be complied with. The Minister or MEC will have to

furnish reasons for why they made their decision and if they do not do so, inform the

applicant or interested party of their right to request reason. To ensure compliance

with procedural fairness the Minister or MEC will have to take cognisance of not only

the procedure as in NEMA but also the procedure set out in PAJA.

6 Conclusion:

Section 24G has been described as an anomaly73 and as being inconsistent with

the South African Framework for Environmental Governance because it allows for

retrospective authorisation of unlawful activities. The fact of the matter is that it has

given the competent authority more control over exercising their powers regarding

the environment and addresses what was a lacunae in the law.

It has been claimed that by allowing retrospective authorisation a number of

possible shortfalls have been created. These include the fact that the administrative

fine does not serve as a strong enough deterrent74 to those who would try and

circumvent the normal procedures for obtaining authorisation. Another possible

shortfall is that NEMA is not clear for what type of situations Section 24G is

applicable and that if the activity has begun that there has already been

environmental damage and the result is that Section 24G is void because one

cannot remedy the damage already done. Finally another concern is that when

application is made in terms of Section 24G, the provision does not provide that the

applicant must cease his activity immediately.75

In considering these concerns, one should not look at Section 24G apart from the

rest of the provisions of NEMA. What Section 24G does not do is to remove the

70

Section 24G(1)(a)(iii) of NEMA. 71

Section 24G(1)(a)(iii) of NEMA. 72

Section 24G(1)(a)(iv) of NEMA. 73


R Paschke and J Glazewski “Ex Post Facto Authorisation in South African Environmental Assessment Legislation: A Critical Review” (2006) 9 PELJ 145 120-150. 75

Paschke and Glazewski 2006 Potchefstroom Electronic Law Journal 9.

24

deterrent effect of Section 24F by granting authorisation in terms of Section 24G.

This is the important part of the provision. What it does is that it allows a person to

firstly admit that they are guilty for contravening Section 24F and then allow the

authorities to hold the person liable for the contravention in addition to allowing the

offending party to seek rectification in an environmentally accountable way. If the

applicant of the Section 24G application however contravenes the order made in

terms of Section 24G(2)(a) or 24G(2)(b), that person will be guilty of another

contravention of NEMA.

Secondly, by applying in terms of Section 24G reference should be made to

Section 28 and the duty of care placed on the applicant so as not to cause harm to

the environment. This by necessary implication means that because of the

application one should cease to carry on with the activity so as to comply with the

duty of care.

Finally, as mentioned above, the administrative fine is not a criminal or penal

sanction. It is rather a means to cover the costs of the application. If however you do

not pay the fine, the Minister or the MEC cannot be forced to consider the

application.

Section 24G is rather an extraordinary provision as it functions as a supplement

to the purely punitive provisions of Section 24F and it makes sure that unlawfully

undertaken or commenced activities are dealt with in an environmentally

accountable manner.

25

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26

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Bel Porto School Governing Body and Others v Premier, Western Cape, and

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Others 2004 (2) SA 393 (E).

Hira and Another v Booysen and Another 1992 (4) SA 69 (A).

27

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others

(Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC).

Pepcor Retirement Fund and Another v Financial Services Board and Another 2003

(6) SA 38 (SCA).

Police and Prisons Civil Rights Union and Others v Minister of Correctional Services

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Silvermine Valley Coalition v Sybrand van der Spuy Boerderye and Others 2002 (1)

SA 478 (C).

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Zondi v MEC for Traditional and Local Government Affairs and Others 2005 (3) SA

589 (CC).

an analysis of section 24g of the national environmental

Documents